Marijuana Breathalyzer, Elegant Solution, or Solution in Search of a Problem?

In September of 2016, police in California began an expansive field test of a new generation of marijuana intoxication detection technology. Similar to an alcohol breathalyzer, California is pioneering a new device designed to detect if the subject has ingested THC recently.[1] Built and distributed by Hound Labs[2], the unit is billed as a duel marijuana and alcohol breathalyzer. Feedback from law enforcement has proved positive.
The development of technologies such as the hound highlight the growing need of a standardized and clear way to measure impairment in diving caused by marijuana. With twenty-nine states with robust medical marijuana programs, forty-four states with some form of medical marijuana, eight states with recreational marijuana, and six more states poised to vote in November 2018, the need to judge the intoxication of drivers on marijuana becomes more and more pressing.

Prior Technologies
Prior technologies used to test driver’s impairment under the influence of marijuana have proved ineffective, or impractical for the criminal justice system to work. A prime example of this older technology and the issues it generates for the criminal justice system is THC saliva testing.

Arizona was one of the first states to adopt the widespread use of THC saliva field testing for drivers. These test, simple in design consist of a swab and a plastic tube with a solution that changes color in the presence of THC. Swabs are taken from the inside of the mouth and placed in the solution[3].

While these field testing kits have proved popular, cheap, and relatively simple, medical patients have had to seek judicial relief from the results of these test. Unfortunately, these simple field kits do not detect the level of intoxication, it only detects the presence of THC. While the kits have an effective testing window of thirty minutes to two hours after ingesting marijuana, it cannot tell whether the subject is actually intoxicated. Unfortunately, this same issue is present in other forms of testing such as blood and urine testing as well, as they can only detect the presence of THC and cannot be used to give objective measures.

No universal standard for marijuana intoxication exist. The current limits, set in states that have led the transition to objective measures of marijuana intoxication are not universally accepted as actual measures of intoxication[4]. Indeed, many states count the presence of any THC as intoxication, even if the person hasn’t ingested marijuana within the last thirty days[5]. Further, jurisprudence in states that have adopted objective limits on marijuana intoxication have proven fragmented. Most recently, the Arizona Supreme Court rejected a challenge to the DUI THC statute Arizona law, However, the Court did hold that medical marijuana patents can mount a legal defense of non-intoxication for a positive result[6].

A Solution in Search of a Problem
While pot breathalyzer offer a possible solution to the perceived threat of drug driving, statistical evidence paints a much more opaque picture. Generally speaking, the national statics have shown an overall increase in the number of traffic accidents in 2015[7]. States that have legalized recreational marijuana have seen positive impacts on their traffic accident rate, with Colorado[8] seeing a reduction in fatalities.

Interestingly though, the National Highway Traffic Safety Administration (NHTSA) has begun researching the effect of marijuana on traffic accidents[9]. In a twenty-month study conducted by the NHTSA found that those who used marijuana prior to driving had only a minimally higher chance of causing an accident than those who did not use marijuana[10]. Further, research done by Columbia University found that states that had adopted robust medical marijuana programs saw an overall drop in the number of traffic deaths attributable to opioids[11].

The uncertainty about marijuana’s effect on traffic fatalities brings up doubt about whether drug driving is an actual pressing issue that needs to be addressed by technologies such as pot breathalyzer. While the effect of marijuana DUI may be overstated, and state laws regarding marijuana DUI’s may be out of date and inconsistencies with objective scientific measures, technologies such as pot breathalyzers offer the possibility for objective and verifiable standards for judging intoxication.

Written by Hunter White

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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301. www.ggglawfirm.com